workmans comp indiana

Workers’ comp carriers, more than ever, look for ways to avoid paying expensive treatment. Whether you’ve been ordered to have an MRI, surgery, a spinal cord stimulator or pain treatment, be aware that the workers’ comp carrier may seek to avoid paying for these necessary treatments. Tactics used by these carriers may include utilization review, a second medical opinion, a psychological evaluation or simply denying the treatment.

Don’t let the insurance company get away with denying you needed medical care! Under the law in Indiana, the workers’ comp carrier MUST provide you with all necessary care as deemed medically needed by the attending physician. If you need assistance, please contact our office.

If you would benefit from legal counsel, our office does not charge for a consultation. We’re here to offer our experience to make sure you receive what you’re legally entitled.

Did you know that all Indiana Worker’s Compensation attorneys charge the same fees? The fees are set by Indiana law. Under the Indiana Workers’ Compensation Act, attorney fees are limited to 20% of the first $50,000.00, and 15% of any remaining balance.

Klezmer Maudlin can only charge a percentage of any recovery received and never charge you an up-front fee for our services. With limited exceptions, we also will collect our out-of-pocket expenses from the recovery and not from you. If you hire us with an offer already given to you, we will typically agree not to charge an attorney fee unless we recover additional money. For example, if you hire us with an offer already of $5,000.00 and 3 months later we tell you we can only get you $5,000.00, we will typically not charge you.

We will discuss this in more detail at the initial meeting and put our agreement in writing. If you have any questions regarding our attorney’s fee, please contact us at 1-800-809-3776.

Sometimes, workers sustain a work injury that leaves them unable to return to their former job or a similar job. Since permanent total disability (PTD) benefits are not a guarantee for an injured worker who cannot return to his or her prior job or place of employment, these individuals might be forced to seek benefits elsewhere.

Consequently, social security disability (SSD) benefits may be pursued by the injured individual. This often leads to the question of whether SSD benefits will be reduced if the worker is also receiving TTD benefits from workers’ compensation. To determine if there will be a reduction in SSD benefits, a specific formula needs to be followed. Here is how you can determine whether your workers’ compensation benefits will affect drawing social security pay early due to a work-related disability:

If the total of your combined monthly workers’ compensation and social security benefits (including what others in your household draw) exceeds 80% of your gross average earnings per month (average current earnings) prior to the disability, then your SSD benefits will be reduced so that you do not exceed this 80% level

Example: Donna draws $1,000 from SSD per month. Her husband draws $1,500 per month. Donna is also drawing $548 from workers’ compensation each month. Thus, benefits in this household total $3,048. Donna’s gross average earnings per month before she became disabled from a work accident was $3,500. Since 80% of $3,500 equals $2,800, the amount that Donna and her family draws from SSD will have to be reduced by $248 (the difference between $3,048 and $2,800) in order to meet the 80% requirement.

OR

2. If your monthly social security disability pay alone is more than 80% of your gross average earnings per month prior to the disability, then your SSD benefits will be reduced so that the combination of drawing these events along with workers’ compensation benefits does not exceed the amount over 80% that you drew just through SSD income.

Example: Dennis draws $1,300 from SSD per month, while his son draws $300. In total, Dennis’ household receives $1,600 from SSD each month. This does not account for what Dennis earns from workers’ compensation. Dennis’ gross average earnings per month prior to the disability was $1,800. 80% of $1,800 equals $1,440. In this case, since the SSD benefits are more than the 80% requirement, the $1,600 will serve as the maximum standard of benefits level. Thus, the SSD benefits will be reduced so that the combination of this plus Dennis’ workers’ compensation benefits does not exceed $1,600.

On the other hand, workers’ compensation disability pay will not be part of the earnings that determine what you can get from social security disability when you do become eligible to draw it. In other words, if you had a work accident in 1992 and you received 11 weeks of temporary total disability pay that totaled $2,500, then the Social Security Administration will not recognize the $2,500 as part of your total earnings for 1992. This is because social security taxes are not taken out of workers’ compensation disability income.

It is important to note that the injured worker does not have to accept the worker’s compensation doctor’s permanent partial impairment (PPI) rating. YOUR RIGHT as an injured worker is to negotiate a higher settlement if you think the injury is serious enough that a second opinion from another specialist would likely result in a higher PPI rating.

Here are some things to consider when deciding if you should negotiate the PPI rating:

Did my injury require surgery?

Is my injury an aggravation of a pre-existing injury?

Does the pain from the injury affect other areas of my body?

In this scenario, if you responded “yes” to the first or third question listed above, then negotiating might be a valid option for your claim. In the second question, after factoring out the old injury from the new injury, you may or may not be left with a higher rating to negotiate.

Rules of Thumb

Generally, if you are given two PPI ratings for the same injury from two different doctors, the settlement offered should be the difference (or average) of these two ratings.

On the other hand, if you are given two separate PPI ratings because you injured two different areas of your body as a result of the work accident, then the doctor will probably combine these impairments into one whole body impairment rating.

Hearings

If a dispute over a PPI settlement is not resolved between the parties involved, then the matter will be presented before a Judge. For all practical purposes, it is best if disputes over PPI ratings and settlements can be resolved without a hearing as each Judge rules differently in these matters. It is possible that the Judge will decide in favor of the lesser rating.

Indiana law does not specifically address whether the employer must continue to pay for the employee’s benefits (for example, health insurance) when the employee is on workers’ compensation. So, since the law is not specific, should the employer decide to stop paying for these fringe benefits, the employer may be required to add the amounts paid for these benefits to the employee’s average weekly wage calculations when determining his or her disability pay.

On the other hand, if you have a collective bargaining agreement, that agreement may require your employer to continue to offer these benefits when you are on workers’ compensation. Similarly, if you are out on FMLA leave, your employee benefits may be protected as well.

Permanent total disability is a situation where an injured worker is unable to perform reasonable forms of work activity following his or her work accident. In other words, the individual is incapable of sustaining even the most limited work activities, like doing a sit down job, as a result of his or her work injuries.

This type of disability takes into account the following about the injured worker:

Age

Mental Well-Being

Physical Impairment

Work Experience & Acquired Skills

Level of Education or Specialized Training (including Military Training)

Capacity to Function After Released from Medical Care

So basically, after taking into consideration the items listed above, if an injured worker no longer has the job on which he or she was injured, and if it is likely that without this job, the injured worker would have a hard time getting another available job that is regular and continuous, then he or she will likely be awarded permanent total disability benefits.

A vocational expert will most likely be called on to help make the permanent and total disability determination for the injured worker. A psychologist may also be needed to evaluate the worker’s state of mind.

The Indiana Worker’s Compensation Act indicated that when a worker’s injuries leave him or her with a permanent and total disability, then the injured worker is to receive either the amount payable for his or her impairment OR 500 weeks of lost wage compensation, whichever of the two totals up to be the greater amount. If you receive some TTD benefits and are later found to be permanently and totally disabled, the TTD benefits received up to that point will be subtracted from the 500 week total.

If an injured worker dies as a result of his or her work accident, then benefits will go to the worker’s dependents.

There are two categories of dependents:

Presumptive Dependents

The first category of dependents, called presumptive dependents, are defined by the worker’s compensation law as any of the following:

Spouse of deceased (as long as he or she does not re-marry)

Unmarried children under the age of 21 who are living with the employee at time of death

Unmarried children under the age of 21 who are not living with the employee at the time of death but for whom the employee has a legal support obligation

Children over 21 who have never been married and are mentally or physically handicapped, or are keeping house for the employee and not otherwise gainfully employed

An award of death benefits would be equally divided among all of the deceased’s presumptive dependents.

Dependents-In-Fact

The other category of dependents, called dependents-in-fact, includes individuals related by blood or marriage who are dependent, either totally or partially, upon the deceased employee. This might include, for example, a 19-year old niece being raised and supported by an aunt that was killed on the job, or a father-in-law who was being cared for by his son-in-law who is now deceased after an on-the-job accident.

Total dependents-in-fact will be entitled to death benefits only if there are no presumptive dependents at the time of the worker’s death.

Benefits

Those that fit the definition of dependents are eligible for a total of 500 weeks of lost wages at 66 2/3% of the deceased’s average weekly wage. The employer and/or worker’s compensation insurance carrier is also obligated to pay any medical benefits and up to $7,500 for burial expenses.

Impairment and disability are different terms. Impairment refers to loss of physical function. Disability refers to inability to work. Your impairment rating is just one factor to consider in determining if you are permanently and totally disabled.

Again, permanent total disability (PTD) is based on your ability to perform reasonable kinds of work within today’s workforce.

The Second Injury Fund was originally meant to help workers who had a second injury, which when combined with the injuries from a prior accident, left the worker permanently impaired. It was later expanded to also include those individuals who were permanently and totally disabled and had reached their 500 week maximum for disability benefits, as well as, those who needed prosthetic replacements or repairs.

Benefits from the Fund are paid at the same weekly rate as that calculated for the employee’s 500 weeks of disability pay. They are distributed to the injured worker for no more than 150 weeks. An injured worker can seek renewal of benefits for another 150 weeks at the end of each 150 week period.

In order to renew your request for benefits from the Fund, it is very important that you do the following:

File prior to the end of each benefit period

Include with your petition for renewal all medical documentation that proves you are still permanently and totally disabled

A separate application for prosthetic repairs or replacements should be used to apply for funding to cover such costs.

For more information about applying for Second Injury Fund benefits, visit the Worker’s Compensation Board here.

The law in Indiana provides injured workers with three forms of disability pay: Temporary Total Disability (TTD), Temporary Partial Disability (TPD), and Permanent Total Disability (PTD).

Permanent Total Disability (PTD)

Permanent total disability is a situation where an injured worker is unable to perform reasonable forms of work activity following his or her work accident. In other words, the individual is not capable of sustaining even the most limited work activities, like doing a sit down job, as a result of his or her work injuries. This type of disability takes into account the following about the injured worker:

Age

Mental well-being

Physical impairment

Work experience & acquired skills

Level of education or specialized training (including military training)

Capacity to function after released from medical care

According to the Indiana Worker’s Compensation Board’s Guide to Indiana Worker’s Compensation, when a vocational doctor says that the injured worker will NEVER be able to work again in ANY REASONABLE employment within society, then he or she is entitled to a total of 500 weeks of pay at the rate of 66 2/3% of the pre-injury average weekly wage OR the amount payable for his or her impairment, whichever of the two totals up to be the greater amount. This means that if you have received lost wages up to the point that you are found to be permanently and totally disabled, the number of weeks that you were already paid will be subtracted from the 500 week maximum.

Example:

A fifty-six year old male migrant worker, whose first language is Spanish, is involved in an industrial accident and loses his right leg. He now has a 100% permanent impairment rating to his lower extremity. Given the factors previously noted, this man would likely be limited in his ability to find other employment and may in fact, be unable to find any other reasonable employment after his accident.

If, however, the same incident happened to a fifty-six year old male attorney, who also received a 100% permanent impairment rating to his right lower extremity, is is less likely that he would qualify for PTD benefits because he would probably be able to do another form of work despite his impairment.

Determining PTD Eligibility

A vocational expert will most likely be called on to help make the permanent and total disability determination for the injured worker. A psychologist may also be needed to evaluate the worker’s state of mind.

More Options

The Second Injury Fund is available to employees injured on the job with resulting permanent and total disabilities. Those who apply and are accepted will receive additional income after the 500 week maximum. For more information regarding this fund, you can learn more here.